I made a significant announcement on my new podcast episode, show number 328 of The Marketing Companion.

In this 13th year of the program, I’m stepping down and handing the reins to a new owner. You can listen to the episode for the details. I’m not going away quite yet, but beginning in January 2026, there will be a new owner and show host.

Having a podcast that has lasted more than a decade — and I’ve never missed an episode — certainly beats the odds. More than 2 million downloads later, I’m moving on to new projects.

I’m not one to dwell on the past, and this show is no exception as I plow forward on a discussion of key tech considerations for marketing with my friend Sandy Carter.

You can enjoy this show and hear my announcement by clicking here:

Listen to Episode 328 of The Marketing Companion

Here is an AI-generated summary of the show highlights:

The Nvidia Deepfake: A Cautionary Tale for Brands

Something jaw-dropping happened during Nvidia’s big corporate event. I hopped on LinkedIn and saw the video of Jensen Huang, Nvidia’s CEO, who always delivers inspiring talks. But, to my shock, the replayed video had more views than the actual livestream — and it turned out to be a fake.

This wasn’t just a prank. Thousands (including some Nvidia employees and even CNBC) tuned in, believing it was Huang, only to discover it was an AI-crafted forgery pushing a crypto scam. Even veteran marketers like Sandy and me were fooled, clicking legitimate-looking links that led to the fake event.

What’s really unsettling is the precision and organization behind this attack. This wasn’t a lone hacker; it was an orchestrated crime with marketing-level sophistication. They timed the fake stream perfectly, hijacked search and social placements, and created something so convincing that even close colleagues were swindled.

Here’s the big lesson: authenticity in branding now demands proof. We’ve crossed into an era where merely sounding or looking authentic isn’t enough — brands must invest in new forms of verification.

And here’s the kicker: platforms have the technology to detect and verify truth, but won’t use it. Polarization, outrage, and viral fakes drive more views and, unfortunately, more ad revenue.

Are You Ready for Humanoid Robots?

That’s only half the future. The other revolution speeding toward us is the age of humanoid robots — not just as factory workers or distant sci-fi dreams, but as customer-facing agents.

We’re already seeing this in places like Korea and Japan, where robots are stepping in to care for the elderly or providing personalized services. In Silicon Valley, there’s already a humanoid robot in beta that will deliver pizza, serve you at dinner, pour drinks, and even clean up afterward. That sounds like an upgrade to my hosting skills! However, it has profound implications for marketing.

The robot selects the brand of soda. The robot chooses which cleaning product to use. Suddenly, Coke, Pepsi, P&G — their customer might not be the humans in the household, but the robot company or its AI!

And what about architectural design? If your home can’t accommodate the robot’s width, maybe it’s time for a renovation. Marketers must start thinking about scenarios that were pure fantasy just a few years ago.

More than that, physical AI opens the door for a whole new specialty: “robotic trainers.” Soon enough, marketing educators and consultants might be training robots (not humans!) on how to greet guests in a restaurant or care for patients.

Speed Becomes the Ultimate Advantage

One theme kept coming up again and again in the discussion: speed. AI is compressing the time between idea and impact. We used to run A/B tests for months; today, that luxury is gone. Real-time analysis, constant adaptation — this is survival now.

Some businesses, like those in Dubai, aren’t just keeping up; they’re redesigning their cities for the age of AI and global branding. Dubai has a CEO for the city, not a traditional mayor, and they’re combining storytelling, authenticity, and technology to build global icons like Dubai Chocolate. Makes me realize how far traditional campaigns and approval cycles must evolve.

Management consultants and big agencies like McKinsey are facing tough choices as their data-driven cultures collide with the urgent need for rapid experimentation. Smaller brands and startups get it faster — but larger organizations must shift, too.

I’ve never been this excited — or nervous — about what’s next. If you want to keep up, embrace the uncertainty, stay endlessly curious, and get comfortable with the uncomfortable.

Please support our sponsors, who make this fantastic episode possible.

This episode is brought to you by Brevo (formerly Sendinblue). Brevo gives you the tools to attract, engage, and nurture customer relationships.

Now, any business can build automated customer experiences, email marketing workflows, and landing pages that guide your customers to your main message. We are here to support businesses successfully navigating their digital presence to strengthen their customer relationships.

Go to https://www.brevo.com/marketingcompanion to sign up for Brevo for free and use the code COMPANION to save 50% on your first three months of Brevo’s Starter & Business plan!

A recent Semrush study found that AI search traffic is projected to surpass traditional search by 2028. That makes now the time to prepare your brand for the future of search.

With Semrush AI Search tools, you will lead this transition.

• Track your AI visibility score: See a single, clear benchmark of your share of voice across AI search platforms.
• Identify AI mention opportunities: Uncover sources where your competitors are cited—but you’re not—including social media, forums, and more.
• Benchmark against competitors: Find the exact prompts, mentions, and sources where your competitors appear in AI responses and you don’t.
• Discover trending prompts: Spot the real questions your audience is asking AI platforms—and build content around them.
• Shape your brand narrative: Monitor the sentiment and context tied to your AI mentions, and make sure your brand is being represented the way you want.

Need an inspiring keynote speaker? Mark Schaefer is the most trusted voice in marketing. Your conference guests will buzz about his insights long after your event! Mark is the author of some of the world’s bestselling marketing books, a college educator, and an advisor to many of the world’s largest brands. Contact Mark to have him bring a fun, meaningful, and memorable presentation to your company event or conference.

Follow Mark on Twitter, LinkedIn, YouTube, and Instagram

Image courtesy Mid Journey

The post The Marketing Companion Podcast: Beginning of a New Era appeared first on Schaefer Marketing Solutions: We Help Businesses {grow}.

No one I know studies the AI and marketing scene more thoroughly than Paul Roetzer. As the founder of the Marketing AI Institute, Paul wears himself out keeping up with the latest ideas and trends. So it was fun having him on The Marketing Companion podcast to get his views on current events!

In this show, Paul and I discuss:

• The ethics and philosophy behind using other people’s voices and faces in content. When is it fair use? What is the impact of new legislation?
• “Move fast and break things” has been a Silicon Valley mantra for years, but when does it cross a line when it comes to AI? New product shipments are so bad they might be fraudulent.
• New AI developments rate human performance and even grade the development of our children. Are we creating AI or is AI creating us?
• Several companies have announced AI replacements for executive functions. Can you blame a bot for bad performance? What about accountability?

I’m sure you’ll find this show as invigorating as I did. To listen in, all you have to do is click here >

Click here to enjoy Marketing Companion episode 291

Please support our sponsor, who brings you this amazing episode.

Bravo for Brevo!

This episode is brought to you by Brevo (formerly Sendinblue). Brevo gives you the tools to attract, engage, and nurture customer relationships.

Now any business can build automated customer experiences, email marketing workflows, and landing pages that guide your customer to your main message. We are here to support businesses successfully navigating their digital presence in order to strengthen their customer relationships.

Go to https://www.brevo.com/marketingcompanion to sign up for Brevo for free and use the code COMPANION to save 50% on your first three months of Brevo’s Starter & Business plan!

Illustration courtesy MidJourney

The post Does ‘move fast and break things’ still work with AI? appeared first on Schaefer Marketing Solutions: We Help Businesses {grow}.

By Kerry Gorgone, {grow} Contributing Columnist

The privacy crackdown has begun.

This week, Marriott and British Airways faced massive fines from the U.K. data protection authority the Information Commissioner’s Office [“ICO’] for violating the provisions of the General Data Protection Regulation [“GDPR’].

The ICO fined Marriott $124 million for the data breach that exposed 339 million guest records. British Airways was fined $228 million fine after the company leaked 500,000 customers’ personal data. Bear in mind, the ICO didn’t even impose the maximum penalty (4% of annual global revenue).

I recently wrote about developments in privacy law right here on this blog. Read up on what’s happening with data privacy protection and take the steps necessary to protect yourself from liability.

Legal news for marketers

If you haven’t reviewed the provisions of the GDPR, you need to. And bring your company’s data collection policies into compliance, because you absolutely can’t afford to wait any longer.

Make sure your data protection practices and policies are in compliance, and only work with vendors who do the same. Conduct an audit now to figure out what data you’re collecting and how you’re using it. Document your process for obtaining consent for data collection.

Compare what’s happening with what’s required under GDPR. If what you’re doing doesn’t satisfy legal requirements, it’s time to make changes. If the cost of doing an audit or updating your policies seems daunting, compare that cost with losing 4 percent of your annual revenue to a fine.

Safety “pins”

And privacy isn’t the only area that’s getting more complex for marketers. A federal court in Hawaii has ruled that re-pinning an image on Pinterest violates copyright law.

The court found bottled water company Hawaiian Springs liable for copyright infringement earlier this month. The company’s former marketing director had “re-pinned” a fake ad that college student Brea Aamoth created for a course project.

The mock-up incorporated a picture taken by photographer Vincent Khoury Tylor. He sued Hawaiian Springs for using the photograph in ads on Pinterest and Facebook.

Hawaiian Springs maintained that the college student’s use of the photo in a course project was “fair use” and, therefore, the company’s use of that image was also protected. The court rejected this argument, however, because the company used the image for advertising, a commercial purpose.

The copyright imperative

Like many companies, Hawaiian Springs used outside vendors to manage the brand’s social media. However, this did not absolve the company of responsibility for using someone else’s copyrighted work in their advertising. As the court pointed out, “a defendant’s knowledge or intent is irrelevant to their liability for copyright infringement.”

Copyright is about more than Pinterest or Facebook: any time you use someone else’s content without permission, you put your company at risk.

The stakes for marketers keep getting higher, so if this is new for you, check out our previous posts on copyright.

In the meantime, here are some tips for marketers who want to minimize risk:

1. Create your own content.

Smartphone cameras take incredibly high quality pictures and video, and professional audio is as simple as connecting a handheld mic to your iPhone. Go the extra step to create your own content.

2. If you want to use someone else’s content, get permission.

This sounds easy, but it involves making sure that the person who gives you permission actually owns the content! Third parties upload content to YouTube, Pinterest, Facebook, and other sites all over the web every day, in some cases claiming ownership.

Keep digging until you find the original source. Then, get written permission from the copyright owner before using their creative work in any of your marketing.

If you can’t verify that the original source actually owns the content you want to use, don’t use that content.

3. Get permission in advance

Encouraging people to submit photos, videos, or other creative work for a contest or promotion can be a great way to engage your audience, but protect yourself from copyright infringement claims up front.

Be sure that the rules clearly tell people that, by taking part in the promotion and submitting their creative work, they’re giving your company a royalty-free license to use the content for any and all purposes from now until the end of time.

Well, something like that. Consult an attorney to draft official rules.

4. Make sure that any agency or vendor you work with takes the law seriously.

When using third-party vendors and agencies for content (or for any part of your marketing process that involves the collection of data, for that matter), choose carefully. Select agencies and vendors that take legal compliance seriously, and supervise their work once they’re engaged.

If you’re not sure how to tell which vendors will keep you out of trouble, here are some questions to ask before hiring an agency or contracting with a CMS vendor.

“The wheels of justice turn slowly,” as they say, but law is beginning to catch up to marketing technology. Take steps now to minimize your exposure.

Kerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also a Learning Designer at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast and gets people to open up about their cool collections, weird hobbies, and inspiring side hustles on The Punching Out Podcast with co-host Katie Robbert. Find Kerry on Twitter.

Illustration courtesy of Sang Hyun Cho from Pixabay.

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By Mars Dorian, {grow} Contributing Columnist

Fellow content creators and marketers, whether you like it or not, the European Union is once again going to change the way you work online. Remember last year’s GDPR law that flooded your inbox with companies updating their terms of services?

Well, another heavy regulation is looming on your digital horizon.
(Insert sarcastic happy face here)

The European Council has voted for a new copyright law that limits how copyrighted content is shared on online platforms.

As of now, companies are not responsible if their users violate copyright laws.

So if you post copyrighted material, let’s say a devastating YouTube review of a blockbuster movie where you feature snippets of the movie, the company AKA the copyright holder can ask the platform to take it down. It’s simple and no one has to pay a fee.

But when the new law goes live, tech companies will be held responsible and fined for allowing to upload copyright-infringing material.
Before you think it wouldn’t impact you, please read on. Because it does.

I’ll save you all the bureaucratic details. You can read all 64 pages of the EU Copyright Directive here. (Tell me if you make it past the first five pages, because I didn’t.)

Let me just feature the two most problematic articles of the regulation which may impact your content marketing strategy:

Article 13, the “meme ban”

Profit-oriented platforms (hint: Every social media platform you use) have to delete any user-generated content that violates copyright laws. If you upload a YouTube video reviewing a Disney flick showing footage, it will be deleted. Same for every image, text and/or video you upload but don’t hold the copyright.

This could mean the companies will have to install upload filters that check every single piece of content you EVER upload.

Since even the most niche social network and obscure forum will have to abide, Article 13 could devastate small businesses who don’t have the means to create sophisticated upload filters.

This article is also called the “meme ban” since memes mostly use copyrighted material and are likely to face getting deleted the second you upload them on Twitter or Facebook.

The problem? The inaccuracy of these filters and algorithms is well-known. The German Facebook last year deleted the profile and posts of a German Jew sharing his experiences with anti-Semitism. Apparently, Facebook’s ‘hate speech’ filters couldn’t differentiate between a victim of anti-Semitism and the actual anti-semitic perpetrator.

Onto the next culprit.

Article 11 AKA the link tax

If content excerpts are featured from a publisher, for example on Google news or news aggregation sites, you have to obtain a license from that publisher. This also means you can’t post quotes or snippets on forums anymore UNLESS you obtain the appropriate license.

The idea here is that content creators and publishers ought to get paid whenever excerpts of their work get published on the web. It sounds almost fair, except the lawmakers didn’t address the vagueness of the rules.

What constitutes an excerpt? If I link to Mark Schaefer’s blog using one of his headlines, will I have to obtain a license from him to do so? It’s his text that I feature but don’t pay for.

If you sell a self-published book on your page and feature journalists praising it, will you need to get a license from them? What if you include reviews from commercial sites or business owners?

Imagine getting a license for every piece of content you feature but don’t own.

It’s the bureaucratic gift that keeps on giving.

Now you might say, “Who cares. I’m not an EU citizen and I don’t live in Europe. Touché.”

No touché for you, amigo.

As it’s the case with the General Data Protection Regulation enforced in 2018, the new law will apply to any online user, regardless of their nationality or where they live.

Since the EU is still the biggest economic block on the planet, its influence shapes the MO of big tech companies from the US. The new digital laws will apply to online marketers in Singapore and content creators from Wyoming. There’s no escape.

What can you do? If you’re not an EU citizen, you can’t do anything. Ugh. It sucks, I know.
As a German living in the EU, I’m going to address my local politicians and see how far I can get.

EU copyright law – Conclusion

I wish I could give you a more actionable plan but it’s important to be informed about web issues that affect you.

Are you worried about the new EU content regulations? If not, why?

Mars Dorian is an illustrating designer and storyteller. He crafts words and pictures that help clients stand out online and reach their customers. You can find his homebase at www.marsdorian.com and connect with him on Twitter @marsdorian.

The post What content creators need to know NOW about the controversial EU copyright law appeared first on Schaefer Marketing Solutions: We Help Businesses {grow}.

By Kerry Gorgone, {grow} Contributing Columnist

European Union residents trying to access certain websites on May 25, 2018, discovered that they could not do so: they’d been blocked because of new data privacy requirements impacting E.U. residents.

Even though the General Data Protection Regulation (“GDPR”) has been on the books since April 2016, the effective date seemed so far off that many companies procrastinated. As the months passed, they failed to update their data collection practices or create a contingency plan. Then last month, faced with the looming GDPR deadline, some companies decided simply to block E.U. users from their online properties.

Here’s why that’s the wrong decision.

Blocking E.U. residents from your site doesn’t mean you’re safe from GDPR headaches.

First, blocking E.U. people from accessing your website won’t protect you from fines under GDPR. The law also applies to data you’ve already collected, so unless you’re deleting all the user accounts of E.U. residents, you could still be violating GDPR.

In addition, GDPR applies to E.U. transactions even if the participants are located elsewhere in the world. This means that blocking users located in the E.U. from accessing your site won’t completely protect you from GDPR. So, blocking doesn’t work to avoid GDPR requirements. But it does do one thing: tick people off.

Blocking E.U. residents undermines the work you’ve done to build a relationship with your audience (in the E.U. and elsewhere).

Even if European Union residents might comprise a small percentage of your audience, affirmatively blocking any group of people from your website is a bad idea. Either you genuinely care about your audience or you don’t.

If you’re willing to cut loose hundreds of millions of people to avoid having to comply with privacy laws, you don’t care about your audience (or, at least, you don’t care enough). However the numbers pan out when you analyze number of users, customer lifetime value, etc., engaging in this type of dollars-and-cents assessment alienates the people you claim to serve. Also, it doesn’t work to insulate you from risk under GDPR. (See above.)

What’s so bad about data privacy anyway?

There’s little long-term business downside to being more transparent in your data collection practices.

The text of the GDPR legislation requires companies to make sure that people’s personal data is processed lawfully, transparently, and for a specific purpose. In other words, companies should stop collecting data just because they can and, before collecting information, have a use for that information in mind.

After the data breaches we’ve seen recently, the dangers of hoarding lots of data for no particular reason should be apparent. It makes sense to only collect data you intend to use for a specific reason. That being the case, why not work to comply with GDPR?

GDPR also requires that businesses help people to understand why their data is being collected, how it’s being processed, how they can view the information that’s been collected and how to delete it. If there’s a convincing argument against explaining to people what data you’re collecting on them and how you’re using it, I haven’t heard it.

So, if you’re one of the companies that’s already blocked E.U. residents, what should you do?

Get with the GDPR program.

First and foremost, assess your company’s current data collection practices and compare them with the requirements of the GDPR. Don’t forget to look into how vendors or third-party solutions you use handle people’s data. You’ll need to check all your marketing automation systems and database providers.

Create new opt-in forms that comply with GDPR. Be sure to avoid “bundling” permissions.

Consider whether you need a “Data Privacy Officer.”

There’s more, so if you’re not already in compliance with GDPR, study up. Bringing your processes into line will require time, effort, and resources, but if you truly value your audience (or just want to avoid potentially paying millions of pounds in fines), it’s worth the investment.

Kerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also Director of Product Strategy, Training, at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast. Find Kerry on Twitter.

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By Kerry Gorgone, {grow} Contributing Columnist

Nearly every time I give a presentation on podcasting, someone asks me about music. Typically, they’re already using popular music as their podcast opener and they’re asking me “what they should do.”

My answer is always the same: “Stop using copyrighted music unless you have written permission.”

They usually chuckle at first, forcing me to repeat it. “Seriously, stop using it. You’re opening yourself up to major liability if you don’t.”

Today let’s talk about protecting your podcast by using music the right way.

Face the music

Copyright is a complex issue, and I’ve discussed it on this blog before, but here’s a summary: An artist owns copyright in his or her work as soon as it is “fixed in a tangible medium” (e.g. drawn on a napkin, typed into a Word document and saved, painted onto a canvas, recorded into an audio file, etc.). Whether or not the creator registers the work with the Copyright Office, he or she holds the exclusive right to determine who uses the work and for what.

What this means for podcasters is this: you absolutely cannot use any portion of someone else’s music in your podcast. Not the whole song, not half the song, not ten seconds of the song. Nothing.

There is no “30-second rule” or any other doctrine stating that you can use 30 seconds of a song without penalty, or that X seconds of a song will always be “fair use.” That’s a pervasive urban legend of sorts, and buying into it could prove costly.

Protecting your podcast

I recently tweeted my answer to the podcast music question after another new podcaster messaged me to say that they wanted to use a popular song in their podcast.

I get this question a lot: “I use popular music as my podcast opener. What should I do?”

Here’s what you should do: Stop using popular music as your podcast opener until you have written permission from the person/entity that owns the #copyright. That’s the answer! pic.twitter.com/BRCOYBko9o

— Kerry O’Shea Gorgone (@KerryGorgone) January 4, 2018

Podcaster and marketer Scott Monty replied to my tweet, surprised that people today don’t know how to get “podsafe” music (royalty free music you can legally use in your podcast).

Seriously. It’s 2018. I use @Pond5 for lots of my music needs, and @YouTube now has a great audio library in their Creator Studio: https://t.co/bYUHb3iGMJ

— Scott Monty (@ScottMonty) January 4, 2018

Scott’s right: we should all know better, but it seems many new podcasters don’t realize the potential risk of using copyrighted music, much less know where to find podsafe options. To help, I’ve provided some options here for sourcing music legally.

Get permission from an independent artist.

If you know any musicians (and many of us do), you could ask them for permission to use one of their songs in your podcast, provided you give them credit and a link back to their online catalog. I did this myself, using one of Noam Weinstein’s songs as my podcast opener for Marketing Smarts.

The key is to make sure you obtain written permission from the person or entity that owns copyright—not always as easy as it sounds once a label or publisher is involved. Still, if you know an indie artist whose music you love, there’s no harm in asking permission. Just don’t start using their music until you get the okay!

Use a royalty-free music service.

Scott Monty uses Pond5, but there are many online libraries you can use to source royalty-free music for your podcast. Here are a few more for you to check out:

Storyblocks
Epidemic Sound
Opuzz.com

There are free options, as well, including the Free Music Archive and YouTube’s Creator Studio Library. Just take care to abide by the requirements set forth in the license (usually a Creative Commons license), such as providing the artist with credit / attribution.

Get your own sonic branding

If you’re in podcasting to promote your business or to boost your profile as a speaker/author/consultant, you might consider commissioning your own “sonic logo.” If you’re not familiar with the term “sonic branding,” you can check out the interview I did with David Meerman Scott and Juanito Pascual on the subject for MarketingProfs.

One example is the sound you hear that means “Intel Inside”—a sound or short composition that people instantly associate with you and your brand.

Once you’re beyond the exploratory stage and podcasting is part of your marketing mix, you might consider investing in your own unique sonic logo or theme song. It will help you to stand out in an increasingly crowded marketplace, and you’ll know without a doubt that you (and no one else) has the right to use that music.

Facing copyright realities can be deflating if you’ve got your heart set on a particular song, but the reality is that most podcasts don’t make enough money to pay the huge licensing fees required for popular music. One episode of the AMC series “Mad Men,” for example, featured the Beatles song “Tomorrow Never Knows.” Licensing the song for that single use reportedly cost $250,000.

With the many talented artists creating royalty free music today, you should be able to find something that evokes a similar mood or feeling to the popular song you’ve got in mind, and digging around is well worth the effort. A copyright infringement case could easily cost you hundreds of thousand of dollars in legal fees and settlement costs, and even more if you lose after a trial.

Go forth and podcast: just be smart about selecting podsafe music!

Kerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also Director of Product Strategy, Training, at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast. Find Kerry on Twitter.

The post Protecting your podcast: Finding and using pod-safe music appeared first on Schaefer Marketing Solutions: We Help Businesses {grow}.

By Kerry Gorgone

Loyalty programs seem like Marketing 101. A retailer or other local business offers consumers a loyalty card that entitles them to free goods or services if they visit the store X number of times or refers X number of friends, etc.

The popularity of loyalty programs is difficult to dispute: in a recent survey from CodeBroker, 70% of shoppers said they belonged to between one and five non-grocery loyalty programs.

A simple incentive program can work to drive business. Research has shown that consumers are more likely to return to a business (and spend more) if they are part of a loyalty program. Some experts have observed that these kinds of programs don’t engender brand loyalty so much as loyalty to the offer, but nonetheless business are spending unprecedented amounts on establishing new programs.

Deceptively simple, loyalty programs actually spark a number of important legal questions, ones you should consider before starting your own campaign.

First, are loyalty programs legal in your state?

Laws regulating business vary from state to state, and some jurisdictions prohibit loyalty programs, at least for certain kinds of businesses. For example, New Jersey petroleum companies are prohibited from running loyalty discount programs, (except through a credit card company). In other states, the discounted price of that tenth ice cream (i.e. “free”) can trigger state antitrust laws that prohibit selling goods below cost. Check your state’s laws relating to loyalty programs now, so you don’t become acquainted with them the hard way later on.

Second, a loyalty program is a contract.

Some businesses fail to realize that the promises you make on a loyalty card are enforceable. You make what’s called a “unilateral offer” by advertising your loyalty program. Consumers accept your offer by performing according to the terms of your offer (e.g. visiting your store 10 times, purchasing 10 ice cream sundaes, etc.)

If you don’t carefully think through the terms and conditions of participation in your program, you might be held to promises that, in retrospect, seem unreasonable. Most consumers wouldn’t bother to sue you over loyalty program promises, but there’s always that small percentage of the population willing to go the distance over “the principle of the thing.”

One example: the wiseacre who saw a commercial for Pepsi’s “Drink Pepsi, Get Stuff” program stating that participants could get a Harrier jet (at that time worth approximately $33 million) for seven million Pepsi points and decided to go for it. After amassing the requisite number of points, he tried to exchange them for his jet. When Pepsi refused to furnish the Harrier, he sued. Although he ultimately lost the lawsuit, litigation lasted more than four years and likely cost hundreds of thousands of dollars in attorneys’ fees.

Third, consider the tax implications.

Anytime you’re selling goods or services, you need to understand the tax ramifications. You probably have a good handle on sales tax for the state in which you and your clients operate, but do you know how the requirements change when someone redeems a loyalty program incentive? For example, if your customer redeems a loyalty coupon for 50% off a hundred-dollar purchase, does he or she pay sales tax on $100 or $50?

The landscape is complex, to say the least, and there’s no simple blanket rule you can follow to ensure compliance. Collect too little tax, and you’ll get hit with a bill and possibly penalties. Collect too much, and you risk a class action lawsuit brought on behalf of your customers. Talk about taxing! A tax attorney is a business owner’s best friend.

Fourth, think about franchisees.

If you or your client has franchises, regulations govern whether or not franchise locations can (or must) honor your loyalty program. In some jurisdictions (like the District of Columbia), it’s illegal for businesses to require that franchisees participate in their corporate loyalty programs.

From a customer experience standpoint, it’s confusing to have some locations participate in a loyalty program while others don’t. Make every effort to get franchisees on board with your proposed program before launching.

Finally, there’s even some question as to whether unclaimed loyalty rewards should be considered “abandoned property.” (Seriously.)

There’s more to consider (with legal issues, there’s always more to consider), but consulting with a lawyer in your state who specializes in marketing matters will help you to mitigate risk when launching a loyalty program.

I’m not launching a loyalty program, per se, but if you share ten of my {grow} blog articles you’ll get…my undying affection. Thanks for your loyalty!

Kerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also Director of Product Strategy, Training, at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast. Find Kerry on Twitter.

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By Kerry Gorgone, {grow} Contributing Columnist

Influencer marketing is more popular than ever. Brands like Adobe, Verizon, and many other brands have all tapped influencers to achieve their marketing goals, and it’s working. According to a study from Tomoson, businesses earn $6.50 for every $1.00 spent on influencer marketing.

If you’re not incorporating influencer marketing into your mix, you should at least be thinking about it. But before you take the plunge, lay some groundwork. I’ve covered the legal risks that arise in influencer marketing and blogger outreach here on {grow} and on my blog at KerryGorgone.com, so go check out those posts if you need a refresher in the importance of disclosure in influencer/brand relationships.

It’s been clear for some time that the Federal Trade Commission (“FTC”) was getting progressively more strict in their approach to influencers posting sponsored content without the proper disclosures. First they updated their disclosure guidelines in 2013, then they issued some clarifying questions and answers in 2015.

Then they started issuing warning letters to brands like Cole Haan and Lord & Taylor. In 2017, the FTC issued reminder letters to individual influencers and marketers insisting that they reveal their business relationships when posting sponsored content.

There’s nothing illegal about sponsored content or influencer marketing, unless it’s not clearly labeled as advertising. The goal of consumer protection laws is to ensure that the public knows what endorsements are motivated purely by a love of the product and which are partially motivated by money or swag.

As a brand working with influencers, the onus falls on you to make sure that the bloggers, Instagrammers, YouTubers and other influencers you work with comply with legal disclosure requirements. Think of it this way: it’s easier and more efficient for the FTC to crack down on the brands that pay influencers than it is for them to chase down the millions of individual video bloggers, Twitter celebrities, and other people who’ve managed to monetize their online followings.

If you want to recruit influencers to amplify your brand message, do it, just be smart about it. First, check out my {grow} post: a checklist for safe influence marketing.

Second, work with a practicing attorney who specializes in social media law (like Sara F. Hawkins) to create a contract you can use to govern each of your influencer relationships.

In addition to the practical matters of what influencers will receive from your brand, what kinds of content they’ll be expected to create, how success will be measured, etc. (all of which is covered in this helpful post by Erika Heald), you’ll want to include your expectations about compliance, as well.

When working with influencers, here are some of the legalities you’ll need to cover:

Effectives Dates and Compensation

This is business 101, but make sure that your contract includes a start date, an end date, and specifics on payment. How much will the influencer receive? When will he or she receive it?

What does he or she need to do in order to satisfy their obligations—host a Twitter chat, interview you for a podcast, write three blog posts, etc. Erika’s post above has some excellent suggestions on ways to leverage the influencer relationship.

Do they have to meet certain goals as measured by specific metrics in order to qualify for payment? Lay it all out in writing.

Copyright ownership

Unless the photos, videos, blog posts, and other content you’re asking for are “works for hire,” the individual influencers will retain full copyright ownership. This is likely fine, as your interest isn’t in the work itself so much as the exposure it will bring your brand, but it’s something to consider.

If you intend for the works to be “works for hire” (owned by your brand), you’ll need a written work-for-hire agreement. If, however, you intend for the individual influencers to retain copyright ownership but give you a license to use (or re-use) the content they create for marketing, state that in your contract. (Make sure the license is irrevocable and doesn’t expire).

You’ll also want to get the influencer to promise that the content he or she publishes as part of your campaign is their own original work, and none of those works infringe on someone else’s copyright.

Disclosure

Insist in no uncertain terms that influencers explain that they have been paid by your brand (or received an all-expenses-paid trip or free samples or whatever) every time they post about you.  You’re likely going to retain the right to review sponsored posts before they go live, so make sure to include disclosure on the list of things you review and approve prior to publication.

Some things to know: the FTC has indicated that “#sp” or “thanks, [brand]” or #partner aren’t clear enough for the average person to understand that there is some kind of “material connection” (e.g. money or free stuff changing hands) in an influencer relationship. Offer examples of clearer language influencers can use.

For example, on Twitter, suggest terms like “client” or “ad,” and full-sentence disclosures like “Thanks [brand] for the free trip to [Resort Name]!” The more descriptive, the better.

For longer posts hosted on the influencer’s own site, there’s plenty of room for a full explanation. Was he or she paid? What free goods or services did the influencer receive? Do they have an ongoing sponsored relationship with you, the brand?

Many influencers will simply post a general disclosure that says something like “some of the posts on this blog are sponsored” or “some pages include affiliate links.” This disclosure won’t be sufficient, because it’s entirely possible someone coming to an influencer’s site to read one specific post will never click over to that other page.

Require influencers to disclose the sponsored nature of the content on each blog post, in each video, and as part of every social media post about your brand.

Contests and Giveaways

Promotions like contests and giveaways are especially tricky. You can get a good background on the legal aspects of running these from my blog, but if you intend to authorize influencers to run contests or giveaways as part of your campaign, make sure they’re adhering to legal requirements, as well as the policies of whatever social networks they’ll use to run or publicize them.

The vast majority of legal headaches that arise from influencer marketing could be prevented with a little pre-planning. If you’ve already done blogger outreach without these precautions, it’s never too late to start doing things right! I hope this post will serve as a kind of public service announcement for brands: there’s true power in influence marketing, but as a wise man once said, “with great power comes great responsibility.”

Kerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also Director of Product Strategy, Training, at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast. Find Kerry on Twitter.

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By Kerry Gorgone, {grow} Contributing Columnist

Today, it is really difficult making money off of content. Despite rising demand, there is an expectation of “free,” leaving musicians, artists, and writers to scramble for a living.

That makes it all the more aggravating when we find examples of companies unfairly making money off your copyrighted content. And that is exactly what is happening in a questionable method of monetizing blog content involving sites like Business2Community and NewsCred.

In fact, they may even be making money off of you without your knowledge.

How Business2Community makes money off of free content

Business2Community is a website of curated content from across the web that was founded by Brian Rice, senior director integrated marketing for SAP, and others. The site has no association with SAP. According to those associated with the site, it has struggled to create a viable revenue stream. A few years ago, the site was up for sale.

Recently, several bloggers, including Mark Schaefer, discovered that their original, copyrighted content was being sold to unsuspecting companies for their use without the knowledge or permission of the content creators. Here’s a notice at the bottom of a piece of Mark’s content that showed up on a business site without his consent:

Business2Community is licensing the content to NewsCred, which is then selling the content to corporate clients. Both NewsCred and B2C are profiting from the original content skimmed from blog sites for free.

Mark, and hundreds of other writers, had given Business2Community permission to syndicate blog content on the B2C site, but there was no agreement to sublicense the content to others. And yet his piece had been among those sold to Newscred, which in turn licensed the content to brands to post on their own sites.

This situation becomes even more complicated because tech giant Dell paid Mark to write the original article. Technically, Dell owned the content and Business2Community stripped the reference to Dell from the post before selling it to NewsCred.

This situation opens up many questions about the Business2Community practice and the rights of authors who had contributed content to them in good faith. How does this happen, and is it legal?

Copyright in a world of curation

Most people understand the fundamentals of copyright: you create something (like a photo, a blog post, or an ebook), and you own it. If someone else wants to use that content, they need to get your permission (subject to the exception for “fair use,” which I’ve explained in detail here).

Seems simple enough, and yet people infringe copyright all the time, intentionally or unintentionally. One marketing practice that seems to create confusion is content curation—sharing content created (and owned) by someone else on your website, social media feed, or other channel.

Essentially, “content curation” means sharing quality content from outside sources (i.e. content that you didn’t create) for the benefit of your audience. The value in curation lies in using discretion to sort through the mountains of crap content and guide your audience to the select few gems that are worth their time and attention.

Typically, ethical curation involves linking to the original content source, as opposed to copy/pasting the entire text or uploading video and images to your own site. Content creators can, however, give permission for a website or other publisher to republish their work.

Copyright, Licensing, and Sublicensing

Here’s where things get sticky.

Let’s say that you (the creator and licensor) give a website (the licensee) permission to republish your work. A third party finds it on the licensee’s website and offers the licensee money to let them post it on their website, too.

Without your express permission as the content creator, this kind of sublicensing as practiced by Business2Community and NewsCred is not legal.

Attorney Sara F. Hawkins illustrates the problem this way:

“It would be like somebody came to you and said ‘hey, would you hold my purse?’ and all of the sudden you’re like ‘oh my gosh, this is a really nice purse, I bet I could put it on eBay and sell it.’ That’s what they’re doing [when they sublicense your content without express permission]. Even worse, actually. They’re putting it on ‘Rent the Runway’ and licensing it over and over.”

And yet there are entire businesses (like Business 2 Community and NewsCred) built on licensing content created by others to third parties.

Your original content is like your purse. You wouldn’t intentionally give away your purse, but it’s possible that some of the sites you publish on have terms that say that by publishing on their site, you are granting them a license to use your content and license others to use it.

There’s nothing about copyright licensing in Business 2 Community’s contributor guidelines, but check out this section from their terms of use:

“By posting to or otherwise engaging in any communication within the Site, you are granting the Site (or any of its assignees) a perpetual, royalty-free, and irrevocable right and license to use, reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display, publicly perform, sublicense, create derivative works from, transfer, and sell any such information.” [Emphasis mine.]

In other words, by letting Business 2 Community run your content on their site, you irrevocably grant the company permission to sell your content to third parties.

What’s worse, these terms aren’t dated, so it would be difficult for you as a contributor to know if those terms were in effect when you first agreed to let Business 2 Community use your content.

They are, at least, supposed to give you attribution, but you’ll probably find that any third party who licenses the content simply credits Business 2 Community (as we saw earlier), and not the original source (your website), as was the case with Mark Schaefer’s post that Stratford University licensed through NewsCred after it appeared in Business 2 Community. In this case (look carefully) it appears that Mark Schaefer is an employee of Business2Community:

Placing license provisions in the terms of use (as Business2Community has done) would be considered a “browsewrap agreement.” The enforceability of this type of agreement is a matter of some debate, particularly where, as here, the rights granted are sweeping.

Really, contributors are giving the site all of the same benefits they themselves hold in relation to their content except actual ownership. Once you’ve submitted your post, Business 2 Community is free to sell it, remix it, and create derivative works.

“Short of handing them over the actual copyright,” explains Hawkins, “you’re giving them everything.”

Because so many copyright cases settle out of court, it’s difficult for people to know what’s enforceable and what isn’t, but recently a California court refused to enforce ProFlowers’s browsewrap agreement that required arbitration of disputes. (Long vs. Provide Commerce, Inc.)

In that case, the court suggested that businesses would be “well-advised” to use hyperlinks and “conspicuous textual notice” to ensure that consumers understand that the “linked page contains binding contractual terms.”

In the case of Business 2 Community, contributors can get through the entire submission process without seeing any notice of the copyright provisions in the terms of use. If the syndication happens automatically, the original creator might never even interact with Business 2 Community’s portal—the process is entirely automated at that point.

“A Lawsuit Waiting to Happen”

In Hawkins’s opinion, this situation presented by Business2Community and NewsCred is a class-action lawsuit waiting to happen. “You don’t even get a click,” she observes. “I don’t see how even a browsewrap agreement would apply, because you don’t affirmatively agree to the terms and it doesn’t block you at some point [from submitting a post].”

NewsCred’s business model is different: the company licenses large swaths of content from publishers like The Wall Street Journal (and Business 2 Community), but also uses freelance writers to create original content that they then license to third parties.

“We have over 100,000 newsletter subscribers. It’s really difficult to nurture all of those subscribers against their personalized journeys and their interests,” explains NewsCred Vice President of Marketing Alicianne Rand. “It’s really difficult to scale that with original content production, so we turn to licensed content.”

NewsCred licenses content from more than 5,000 different publishers, including Associated Press, Reuters, TechCrunch, and FastCompany. “We syndicate that content and we allow our customers to host that content on our site,” says Rand. “We’re paying the publishers as customers millions of dollars every single year to have the right to license that content.”

The problem is, publishers might not have the right to sublicense that content in the first place.

“Newscred appears to be buying some shady goods [from Business 2 Community] and they don’t know it, because they’re being told ‘we’ve got permission to do this,” explained Hawkins.

This means that you could see your content appearing on brand websites all over the Internet. If you don’t monitor your content closely, you might miss when it gets reposted — at a profit — to places you never expected.

In other words, someone could well be making money off your content, but it isn’t you.

Brian Rice of Business2Community was contacted multiple times with an opportunity to comment for this article but did not respond to our requests.

Protect Yourself

If you’re not vigilant about protecting your content, someone could easily put your metaphorical purse on ‘Rent the Runway’ without you realizing it.

Before you post any content (articles, videos, pictures, etc.) on someone else’s website, or grant them permission to repost any of your content, carefully review their site’s terms of use or terms of service, as well as any contributor guidelines.

If you don’t find the answers you’re looking for, email the site owner and ask (in writing) exactly what rights you reserve and which you grant if you contribute content to the site.

If you don’t read the terms of service, you could be letting someone else make money off of your content without owing you a dime. Few people would knowingly agree to that type of arrangement. After all, “exposure” doesn’t pay your bills.

Kerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also Senior Program Manager, Enterprise Learning, at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast. Find Kerry on Twitter.

Illustration courtesy Flickr CC and Thomas Galvez

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